Tuesday, March 17, 2009

Interpreting the Constitution

Peter Robinson has interviewed Associate Supreme Court Justice Antonin Scalia on the video program "Uncommon Knowledge," and they are posting them in chapters throughout the week.

The one for today is on interpreting the Constitution. Justice Scalia argues for a "dead" Constitution, not a "living" one. It's about 8 minutes in length and is worth your time. After admitting that "originalism" is not perfect and that there are some difficult issues, he also says:

The originalist has easy answers for many things, especially the most controversial things in modern times. [Does] the equal protection clause require that states permit same sex marriage? That is not a hard question for an originalist. Nobody ever thought that is what the equal protection clause meant. . . .[Is there] a right to abortion? For Pete’s sake, it was criminal in every state for 200 years. . . . So I have easy answers to a lot of stuff. Whereas, for the "living constitutionalist," there are no answers.

(For more on this, readers might be interested in a blog interview I did a few years ago with Notre Dame law professor Richard Garnett, where we covered things like defining “originalism,” “strict constructionism, ” and “the living Constitution”).

Also relevant is a lecture delivered by Clarence Thomas on these issues:

Let me put it this way; there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.